R. v. Vu, R. v. La
116 C.C.C. (3d) 97
Charged with sexual asult of a 13-year-old prostitute, the police found her in a car whose driver was known to be a pimp. A police officer made a 45 minute tape recording of a conversation with the complainant, making notes only of her date of birth, address and phone numbers. Several days later, this police officer testified on an application for a secure treatment order for teh complainant. He told teh court about the taped interview, saying that it related to her life on teh run and being forced into prostitution. He said that she was cooperative, but told a few lies during the interview. Following further investigation, the police discovered two other young girls at the same secure youth custody and treatment centre where the comlainant was staying, who had been a part of the same prostititution network. Each of the grils were asked to write out a statement describing her life on the street. The staff were instucted to separate the girls while they wrote their satemens. The police officer turned his report and the written statements over to dectives for tehm to investigate teh complaints of sexual assult. However, the tape of the initial interview with the complainant which was not turned over to them. The dectives conducted a urther inteview with teh comainant which was tape recorded and transcribed. The police laid several prostititution related charges however the accused was chaged with the sexyal allsult of the comlainant only. The police officer misplaced the tape of the complainant's initial interview. the reason given by him for the paucity on notes taken by him was tht the day after he apprehended the comlainant, he shot the time out of a car after a high speek chase and was consequently under investigation. at trial the trial judge granted the accused application for a stay of proceedings based on the Crown's failure to disclose the tape recording of the first complainant.
For the majority, where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of teh Canadian Charter of Rights and Freedoms. Such a failure may also sugest that an abuse of process had occured, but that is a separate question. It is not neccessary that an accused establish abuse of process for teh Crown to bave failed to meet its s. 7 obligations to disclose. In order to determine whether the explanations of the Crown is satisfactory, the court should analyze teh cicumstances of the loss of the evidence. The minority judges, disclosure is essential to enabel teh accused to exercise properly his right to make full answer and defence, itself a principle of fundamentaljustice under s. 7 of the Charter, disclosure helps ensure that the accused will have a fair trial.